Locke v. GELLHAUS

#25278-rev & rem-SLZ

2010 SD 11

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

BRYAN LOCKE AND BENJI LOCKE, Plaintiffs and Appellants,

v.

LONALD L. GELLHAUS, Defendant and Appellee.

* * * *

APPEAL FROM THE CIRCUIT COURT OF
THE FIFTH JUDICIAL CIRCUIT
BROWN COUNTY, SOUTH DAKOTA

* * * *

HONORABLE SCOTT P. MYREN
Judge

* * * *

RONALD A. PARSONS, Jr.
SCOTT A. ABDALLAH of
Johnson, Heidepriem,
Abdallah & Johnson, LLP
Sioux Falls, South Dakota
and
MARK W. McNEARY
Aberdeen, South Dakota Attorneys for plaintiffs
and appellants.

ROY A. WISE
ZACHERY W. PETERSON of
Richardson, Wyly, Wise, Sauck,
& Hieb, LLP
Aberdeen, South Dakota Attorneys for defendant
and appellee.
* * * *
ARGUED NOVEMBER 17, 2009

OPINION FILED 02/03/10
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ZINTER, Justice

[¶1.] A pedestrian was injured when a concrete-filled metal grate in a city

sidewalk collapsed. The grate covered a no longer used excavation that was

originally a stairwell to the basement of an abutting building. The pedestrian and

his wife sued the current building owner for negligence and loss of consortium. The

circuit court granted summary judgment in favor of the building owner. The court

concluded that because the city sidewalk had been rebuilt by the building owner at

the direction of the city in accordance with city specifications, the city rather than

the building owner owed the duty of care to the public for maintenance of the

sidewalk. We conclude that an excavation/grate is a “special use” of a sidewalk. We

further conclude that when an abutting property owner creates or maintains a

special use, the property owner owes a duty of due care to the public with respect to

that special use. We finally conclude that the abutting property owner’s duty with

respect to special uses is concurrent with any duties that may also be owed by cities.

Therefore, we reverse and remand.

Facts and Procedural History

[¶2.] In 1984, Lonald Gellhaus and a partner purchased the building located

at 112 South Lincoln Street in Aberdeen (City). According to the original plat of the

City, this street, which included the sidewalk, was dedicated to the public. City

accepted the street and has at all relevant times owned the sidewalk in front of

Gellhaus’s building.

[¶3.] The building was constructed in 1909 as a hotel, with office space on

the ground floor and the lower basement level. Originally, there were stairwells in

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the front of the building. The stairwells were excavated into the sidewalk so the

public could access shops in the basement. The stairwells also provided a natural

light source for the basement.

[¶4.] As early as 1897, City began regulating sidewalks. An 1897 ordinance

determined “the kind of material of which [the sidewalks] shall be constructed.”

Ordinances in 1906 and 1909 determined the width of the sidewalk. Ordinances

from 1897 through 1909 specifically allowed private excavation into City’s sidewalk

for the purpose of creating stairways leading to cellars or basements in abutting

buildings.

[¶5.] By 1924, City changed its policy and prohibited abutting property

owners from making new excavations except for certain purposes, and then only if

“covered with suitable iron covers, iron grating, or glass set in iron or cement [sic].”

A landowner covering a permissible excavation was required to obtain a permit

from the City Engineer. By 1954, City prohibited existing openings in sidewalks.

An ordinance provided that no permanent openings could “be made or maintained

in any sidewalk in any of the public streets of the City of Aberdeen for the purpose

of stairways leading to any basement or cellar” unless covered as specified in the

ordinance. At some time prior to 1968, this excavation was covered by the concrete-

filled metal grate at issue. It is not known who covered the excavation with the

grate.

[¶6.] In 1968, City “deem[ed] it necessary to repair or rebuild the concrete

sidewalks in front of and abutting upon” 150 downtown properties, including the

Gellhaus property. The 1968 ordinance required the abutting owners to “repair or

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rebuild at their own cost and expense cement [sic] sidewalks in front of and

abutting” their properties. The owners were required to repair or rebuild using

“Portland cement concrete in accordance with the City Ordinance and under the

supervision of the City Engineer.” City notified the property owners that if these

improvements were not made within the time specified, City would perform the

work and assess the costs against the property owner. It is unknown whether the

building owner at that time or City performed the work. For purposes of summary

judgment, Gellhaus conceded that his predecessor rebuilt the sidewalk.

[¶7.] The evidence indicates that the concrete-filled metal grate was in place

at the time of the 1968 reconstruction. During that reconstruction, the excavation

was not filled, and the concrete-filled grate remained a part of the reconstructed

sidewalk. Further, Lockes do not take issue with the circuit court’s observation

that: “When the sidewalk was reconstructed in 1968, it would have had to have

been constructed in a way that conformed to the City’s specifications. . . . I did not

find any evidence . . . that the sidewalk . . . was constructed in a manner that was

not consistent with the City’s specifications.”

[¶8.] After purchasing the building in 1984, and up to the time of the

accident in 2003, Gellhaus did not fill the excavation. Although the windows in the

basement were covered and the subspace under the grate was no longer used, a door

in the building allowed access to the subspace. Additionally, although Gellhaus

noticed the concrete in the grate “had worn to some extent,” he did not inspect the

grate or perform any repair or maintenance. There is also no evidence that City

notified Gellhaus of a defect or that he should repair or replace the grate.

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[¶9.] On July 24, 2003, Bryan Locke was standing on the sidewalk in front

of Gellhaus’s building, which housed a probation office on the first floor. Locke, a

deputy sheriff, was about to knock on the window to get the attention of a probation

officer. Almost immediately after Locke stepped onto the grate covering the

excavation, the grate collapsed. Locke fell approximately nine feet into the

subspace and was seriously injured.

[¶10.] Following discovery, Gellhaus moved for summary judgment.

Gellhaus argued that because the 1968 reconstruction was required to be completed

in accordance with City specifications, City became liable to the public for the

manner in which the sidewalk had been reconstructed and maintained with the

grate covering the excavation. The circuit court agreed holding that following the

1968 reconstruction, the duty of due care became City’s obligation rather than

Gellhaus’s. The court explained:

[When the City] said [by the 1924 and 1954 ordinances], okay,
you can build your stairway but now you can’t have it anymore,
removes the responsibility of the landowner when the City also
at the same [time under 1968 ordinance], or shortly thereafter
said, you have to rebuild the sidewalk and you have to do it up
to our specifications. So when . . . they required the landowner
to rebuild it or would rebuild it themselves in 1968, they
undertook the responsibility to make sure that it was up to
specifications. And if they wanted the hole filled in, they should
have filled it in or had it filled in. And when they accepted the
sidewalk without getting it filled in, they also accepted
responsibility for the sidewalk without the hole being filled in,
and it became their duty after that.

The court concluded:

The abutting landowner is entitled to rely on the [statutes and
case law allocating liability between cities and nonresident
abutting landowners]. And the law says that if you construct
the sidewalks in conformance with the City’s requirements,

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which is shown by the fact that the City accepted it or didn’t
give you notice that you had to fix it better, that you don’t have
to worry about the sidewalk [because the City then retains the
maintenance duty].
Decision

[¶11.] Before a defendant can be held liable for negligence, the defendant

must have breached a duty of care owed to the plaintiff. Kryger v. Dokken, 386

NW2d 481, 483 (SD 1986). The question in this case is whether a city, an owner of

property abutting a city sidewalk, or both owe a duty of care to the public for

maintenance of a city sidewalk covering an excavation that had been previously

made for the benefit of the abutting property owner’s building, when the sidewalk

had been reconstructed at city direction pursuant to city specifications. “The

existence of a duty in a negligence action is a question of law subject to de novo

review by this Court.” Kirlin v. Halverson, 2008 SD 107, ¶ 10, 758 NW2d 436, 444

(citations omitted). We begin our analysis by examining the statutory and common-

law duties of cities and landowners relating to city sidewalks.

[¶12.] Rapid City v. First Nat’l Bank of the Black Hills, 79 SD 38, 107 NW2d

693 (1961), discussed both city and landowner statutory and common-law duties. 1

First Nat’l Bank involved a Rapid City resolution analytically identical to the 1968

Aberdeen City ordinance under which Gellhaus’s predecessors were required to

rebuild or repair the sidewalk in accordance with City specifications. We stated

that the predecessor to SDCL 9-46-2, authorizing cities to require abutting

1. Although First Nat’l Bank, 79 SD 38, 107 NW2d 693, involved a statutory
indemnity claim by Rapid City against an abutting landowner, our discussion
of the common-law duties of cities and abutting property owners was not
limited to statutory indemnity claims.

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landowners to repair city sidewalks, created a limited exception to the common-law

rule that landowners generally had no duty to the public. We concluded that the

statute created a limited duty making “abutting owner secondarily liable to the

municipality for damages caused by the owner’s failure to repair.”2 Id. at 43, 107

NW2d at 695 (emphasis added). The result was that under this statutory exception,

ultimate liability for damages caused by defective sidewalks was shifted from the

city to the abutting landowner, but only when the city gave notice3 and the

landowner failed to make the requested repair. Id.

2. SDCL 9-46-2 provides in relevant part:

Any owner of real property who fails to keep in repair the
sidewalks in front of or along such property if he resides
thereon, or if he does not reside thereon, to repair the same
forthwith when notified, is liable to the municipality for any
damage caused by such neglect.

(Emphasis added.) First Nat’l Bank also discussed the predecessors to SDCL
9-46-3, 9-46-4, and 9-46-5. These statutes authorize cities to “require
abutting owners to construct, rebuild, or repair sidewalks adjacent to their
property and provide a procedure for assessing the cost against owners when
the work is done by the municipality,” but unlike SDCL 9-46-2, do not have
language making the landowner liable to the municipality for a failure to
repair. First Nat’l Bank, 79 SD at 42-43, 107 NW2d at 695. Therefore, we
stated that according to the great weight of authority, “liability is not
imposed [under SDCL 9-46-3, 4, and 5] upon the abutting owner, either to
travelers or to the City, for injuries caused by a defective walk.” Id. Finally,
and most significant to this appeal, we did not conclude that any of these four
statutes altered the common-law rule imposing on abutting landowners a
duty to the public for excavations and other artificial conditions (special uses)
in city sidewalks. See infra ¶ 15.

3. Gellhaus points out that he was not given the statutorily required notice to
repair the defect in the concrete-filled grate. Therefore, he argues that he
cannot be liable. However, Lockes do not allege a violation of the duty
arising under SDCL 9-46-2, which only envisions a landowner’s secondary,
statutory liability to a city. Lockes allege a violation of the non-statutory,
(continued . . .)
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[¶13.] Gellhaus focuses on the language in First Nat’l Bank that, in

interpreting SDCL 9-46-2’s predecessor, provided an owner is “secondarily liable to

a municipality for any damages caused by the owner’s failure to repair [the

sidewalk in front of his property.]” 79 SD at 43, 107 NW2d at 695 (emphasis

added). Based on this emphasized language, Gellhaus argues Lockes must first

proceed against City, and then City must pursue an indemnification claim against

Gellhaus. Gellhaus’s argument is misplaced for two reasons.

[¶14.] First, we found secondary liability under SDCL 9-46-2 in First Nat’l

Bank only because that landowner failed to make a repair that was directed by

Rapid City. In this case, the parties agree that Gellhaus’s predecessors

reconstructed the sidewalk in accordance with the 1968 ordinance directing

abutting owners to repair or rebuild the sidewalks. Because Gellhaus did not fail to

repair a defect as required by the 1968 ordinance, secondary liability under SDCL

9-46-2 does not arise. Further, even if Gellhaus were secondarily liable under

SDCL 9-46-2 for a failure to comply with a notice to repair a defect, Budahl v.

Gordon and David Assoc., 323 NW2d 853, 854 (SD 1982), recognized that these

________________________
(. . . continued)
common-law landowner duty to the public to maintain excavations and other
artificial conditions (special uses) that are created or maintained by the
landowner. Therefore, compliance with the notice prerequisite for statutory
indemnity claims by a city under SDCL 9-46-2 is irrelevant in this case.
Further, “[t]he rule has . . . long been that for ‘an abutting property owner
who comes within the specific benefit [i.e., the excavation and artificial
condition] rule,’ notice is not required for liability to attach.” O’Brien v.
Christy, 14 Misc2d 1069, 1071, 539 NYS 2d 657, 658-59 (NYSupCt 1989)
(citing Clemmons v. Cominskey, 149 NYS 2d 559, 1 AD2d 933, 934
(NYAppDiv 1956)).

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types of “enactments . . . are intended to make the actor responsible to the [city],

rather than to any individual[.]” Thus, Lockes have no claim under SDCL 9-46-2.

They seek to recover under a common-law theory of liability for special uses. For

both reasons, Lockes need not first proceed against City under a secondary,

statutory duty theory. Because this statutory duty does not apply to Lockes’s claim,

we next determine whether Gellhaus owed any duty to Lockes under the common

law.

[¶15.] First Nat’l Bank also controls the common-law duty question. In

addition to discussing an abutting landowner’s statutory duties, First Nat’l Bank

set forth the common-law duties landowners not residing on the premises owe the

public regarding maintenance of abutting city sidewalks. We, like most other

courts, concluded that cities, rather than abutting landowners, owe the duty of

keeping city sidewalks reasonably safe for the public. An abutting owner’s duty to

the public arises only when the owner creates or maintains an excavation or other

artificial condition on the sidewalk. We stated:

A municipality has full and complete control over the public
sidewalks within its corporate limits. Consequently, a
municipality is charged with the affirmative duty of keeping its
sidewalks in a reasonably safe condition for public travel, and is
liable for injuries caused by its neglect. Conversely, as there is
no common-law duty resting upon the owner or occupant of land
abutting upon a public walk to keep or maintain the same in
repair there is no corresponding liability to the general public
except when such owner or occupant creates or maintains an
excavation or other artificial condition on the sidewalk which
causes or contributes to an injury.

First Nat’l Bank, 79 SD at 39-40, 107 NW2d at 694 (emphasis added) (citations

omitted). See also Zens v. Chicago, Milwaukee, St. Paul & Pacific R.R. Co., 386

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NW2d 475, 479 (SD 1986) (restating the common-law rule and exception

recognizing a limited special use duty).

[¶16.] Lockes rely on this common-law exception, more generally known as

the “special use” doctrine. Summarizing the cases, the special use doctrine has been

described as follows:

If the abutter makes special use of the sidewalk, he or she owes
a duty to maintain it in a reasonably safe condition for
pedestrians lawfully using it, and must exercise reasonable care
to guard the public from injury. If the abutter does not, he or
she becomes liable to any persons injured as a proximate result
of his or her negligence. The abutter’s liability for negligence is
not affected by the fact that the municipality has a duty to
perform and may also be liable[.] . . . Liability results from the
fact that the abutter creates or maintains the thing from which
the injury results, and not because he or she owns the abutting
property.

19 McQuillin, The Law of Municipal Corporations, § 54:69 (3rd ed 2009).

[¶17.] Gellhaus does not argue that the special use doctrine has not been

adopted in this jurisdiction. Instead, he argues that notwithstanding the doctrine,

City became responsible for the sidewalk because of the 1954 ordinance “revoking”

authority to maintain excavations and the 1968 ordinance requiring reconstruction.

Gellhaus stresses that City dictated the specifications for the 1968 reconstruction

that incorporated the grate. Gellhaus contends that after the sidewalk was rebuilt

pursuant to City’s specifications that apparently permitted the grate in the

sidewalk, no duty “can follow” to Gellhaus because City “dictated how the openings

would be handled.” Gellhaus’s argument is correct to the extent he asserts that as a

result of the 1968 reconstruction, City owed a duty of care to Lockes with respect to

the concrete-filled metal grate that was expressly or implicitly authorized by City.

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Gellhaus, however, cites no authority suggesting that the imposition of this duty on

City extinguished concurrent duties Gellhaus owed for his creation or maintenance

of a special use.

[¶18.] Contrary to Gellhaus’s argument, the special use duty is not

extinguished because a city may also be liable. If the owner of a lot abutting a

street of a municipality, for the use of his property, constructs a vault under the

sidewalk over which he negligently places and maintains a defective covering, he is

liable to one who is injured thereby, “notwithstanding the omission by the

municipality of the duty imposed upon it by statute to keep the street in repair.”

Herron v. City of Youngstown, 136 OhioSt 190, 194, 24 NE2d 708, 710-11 (1940).

See also Lee v. City of Baton Rouge, 243 La 850, 147 So2d 868 (1963) (concluding

that where both a city’s and abutting property’s negligence were alleged to have

proximately caused an injury on a sidewalk, both could be held liable). As

McQuillin succinctly summarizes: “The abutter’s liability for negligence is not

affected by the fact that the municipality has a duty to perform, and may also be

liable[.]” 19 McQuillin, The Law of Municipal Corporations, § 54:69. The

Minnesota Supreme Court explained why, irrespective of the city’s duty, both the

city and the property owner owe a duty to the public when a special use exists on a

public sidewalk.

[B]oth a municipality maintaining public walks and the owner of
[the] property adjoining them are liable for injuries sustained by
reason of defective entryways, coalholes, or other facilities
placed therein for the convenience of the building owner, where
such defects are due to the owner’s negligence. The owner is
liable because of his creation of the dangerous condition, and the
municipality is liable because of its neglect to use due care to
keep the public walks in a reasonably safe condition.

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Pagett v. N. Elec. Supply Co., 283 Minn 228, 232-33, 167 NW2d 58, 62 (1969). 4 We

conclude that City’s and Gellhaus’s duties are concurrent, and therefore, neither the

1954 and 1968 ordinances nor the reconstruction extinguished Gellhaus’s duty to

the public with respect to a special use. The final question is whether Gellhaus’s

excavation/subspace was a special use.

[¶19.] “The special use doctrine applies only if the sidewalk was specifically

constructed in a special manner for the benefit of the abutting landowner.”

Guadagno v. City of Niagara Falls, 832 NYS2d 732, 733, 38 AD3d 1310, 1311 (NY

AppDiv 2007) (citing Kaufman v. Silver, 90 NY2d 204, 207, 681 NE2d 417, 419 (NY

1997); Minott v. City of New York, 645 NYS2d 879, 880-81, 230 AD2d 719, 720 (NY

AppDiv 1996))). A special benefit is an accommodation that allows the abutting

landowner to use the sidewalk in a manner different than the general public. The

benefit relates to the abutting property owner rather than the public.

Under the special use doctrine, the defendants may be held
liable if [plaintiff] can show that . . . the sidewalk was
constructed in a special manner for the defendants’ benefit. . . .

“Special use cases usually involve the installation of some object
in the sidewalk or street or some variance in the construction
thereof,” such as the installation of rails in the sidewalk to
facilitate the removal of refuse, the placement of a protruding
pipe for heating oil, or the installation of a driveway cut-out.
Thus, all special use cases involve an accommodation that
allows the adjoining landowner to use the sidewalk “in a manner
different from that of the general populace.” As the Court of

4. Pagett and the cases discussed therein either expressly involved or assumed
that landowner liability to the public exists when the special use exception
applies. See Pagett, 283 Minn at 236, 167 NW2d at 64; Callahan v. City of
Virginia, 230 Minn 55, 58, 40 NW2d 841, 842 (1950); Wabasha v. Southworth,
54 Minn 79, 55 NW 818 (1893).

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Appeals has recently stated: “[t]he special use exception is
reserved for situations where a landowner whose property abuts
a public street or sidewalk derives a special benefit from that
property unrelated to the public use, and is therefore required to
maintain a portion of that property.”

Moore v. United States, 882 FSupp 1297, 1299 (ED NY 1995) (emphasis added)

(citations omitted). See also Balsam v. Delma Eng’g Corp., 532 NYS2d 105, 109, 139

AD2d 292, 298 (NY AppDiv 1988).

[¶20.] We conclude that the subspace/excavation was a special use because:

(1) the excavation was put into the sidewalk “for the convenience of the abutting

property owner [Gellhaus’s predecessors in interest,]” see Pagett, 283 Minn at 233,

167 NW2d at 62; (2) the cover for the excavation was a “variation in construction of

the sidewalk” and an “accommodation” that allowed Gellhaus to maintain the

excavation without filling it in, which in turn afforded him a use of the sidewalk “in

a manner different from that of the general populace[,]” see Moore, 882 FSupp at

1299; and, (3) Gellhaus’s ability to maintain the excavation under the public

sidewalk using a cover allowed him to receive a “benefit from that property

unrelated to the public use[,]” see id. Simply stated, the excavation and cover were

not constructed for the benefit of the public. They were constructed for the benefit

of the abutting property owner. Our conclusion today is in accord with this Court’s

prior observation that “excavations” are special uses creating a duty on the part of

the abutting landowner. See First Nat’l Bank, 79 SD at 40, 107 NW2d at 694; Zens,

386 NW2d at 479.

[¶21.] With respect to the question of the creation or maintenance of the

special use, we find Pagett, 283 Minn 228, 167 NW2d 58, instructive. In that case

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the landowner argued that it had no duty to maintain a cover over an abandoned

subspace under a municipal sidewalk because the property owner “did not create

the [abandoned subspace], [and] did not use the facility or receive any benefits from

it[.]” Id. at 233, 167 NW2d at 62. Like Gellhaus, that landowner also argued that it

had no duty because the municipality had “the obligation to maintain the public

sidewalk in proper condition.” Id. The Minnesota Supreme Court rejected these

arguments, adopting the trial court’s conclusion that “responsibility was placed on

the owner of the abutting premises and that use of the [subspace was] immaterial

as [a] defendant cannot relieve himself from responsibility by abandoning the

hole.” 5 Id. at 233-34, 167 NW2d at 62 (citing City of Wabasha v. Southworth, 54

Minn 79, 55 NW 818 (1893)). It is sufficient that the landowner “maintained [the

excavation] in the street by allowing it to remain there, with knowledge of its

existence.” Wabasha, 54 Minn at 88, 55 NW at 818. In this case Gellhaus had

knowledge of the excavation’s existence, and he allowed the excavation and cover to

remain a part of the sidewalk. In doing so, he maintained the excavation/subspace

and cover. Further, there is no dispute that Gellhaus’s predecessors in interest

created the excavation.

5. McQuillin also collects authorities concluding that “where a cellarway,
trapdoor, coalhole or the like is put into a public sidewalk for the convenience
of the abutting property owner, the duty of maintaining it in a safe condition,
as between the owner and City, devolves upon the owner, who cannot release
himself of this duty merely by abandoning the use of the structure.”
McQuillin, supra, § 54:128 (citing Pagett, supra, Lodato v. Town of Oyster
Bay, 414 NYS2d 214, 68 AD2d 904, (NYAppTerm 1979), Lombardozzi v. City
of New York, 71 Misc2d 271, 335 NYS2d 907 (NYAppDiv 1972)).

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[¶22.] We therefore hold that Gellhaus, as the abutting property owner,

created or maintained a special use creating a concurrent duty of care to the public

regarding maintenance of the excavation and the grate. See O’Brien v. Christy, 142

Misc2d 1069, 1071, 539 NYS 2d 657, 658 (NYSupCt 1989) (concluding that a

“special benefit” to the landowner existed imposing liability on the landlord when a

sidewalk that covered an underground vault collapsed); Dodson v. New England

Trust Co., 78 OhioApp 503, 510-11, 71 NE2d 503, 507 (1946) (concluding that

abutting owner of real estate connected to an abandoned subspace under a public

sidewalk was liable to pedestrians under special use doctrine). The issues of breach

of duty, causation, and damages remain for a jury. Reversed and remanded for

further proceedings consistent with this opinion.

[¶23.] GILBERTSON, Chief Justice, and KONENKAMP, MEIERHENRY,

and SEVERSON, Justices, concur.

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